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SZABÓ AND VISSY v. HUNGARY JUDGMENT
“78. Communications techniques and technologies have evolved significantly,
changing the way in which communications surveillance is conducted by States.
States must therefore update their understandings and regulation of communications
surveillance and modify their practices in order to ensure that individuals’ human
rights are respected and protected.
79. States cannot ensure that individuals are able to freely seek and receive
information or express themselves without respecting, protecting and promoting their
right to privacy. Privacy and freedom of expression are interlinked and mutually
dependent; an infringement upon one can be both the cause and consequence of an
infringement upon the other. Without adequate legislation and legal standards to
ensure the privacy, security and anonymity of communications, journalists, human
rights defenders and whistleblowers, for example, cannot be assured that their
communications will not be subject to States’ scrutiny.
80. In order to meet their human rights obligations, States must ensure that the
rights to freedom of expression and privacy are at the heart of their communications
surveillance frameworks. To this end, the Special Rapporteur recommends the
following:
A. Updating and strengthening laws and legal standards
81. Communications surveillance should be regarded as a highly intrusive act that
potentially interferes with the rights to freedom of expression and privacy and
threatens the foundations of a democratic society. Legislation must stipulate that State
surveillance of communications must only occur under the most exceptional
circumstances and exclusively under the supervision of an independent judicial
authority. Safeguards must be articulated in law relating to the nature, scope and
duration of the possible measures, the grounds required for ordering them, the
authorities competent to authorize, carry out and supervise them, and the kind of
remedy provided by the national law.
82. Individuals should have a legal right to be notified that they have been subjected
to communications surveillance or that their communications data has been accessed
by the State. Recognizing that advance or concurrent notification might jeopardize the
effectiveness of the surveillance, individuals should nevertheless be notified once
surveillance has been completed and have the possibility to seek redress in respect of
the use of communications surveillance measures in their aftermath.
83. Legal frameworks must ensure that communications surveillance measures:
(a) Are prescribed by law, meeting a standard of clarity and precision that is
sufficient to ensure that individuals have advance notice of and can foresee their
application;
(b) Are strictly and demonstrably necessary to achieve a legitimate aim; and
(c) Adhere to the principle of proportionality, and are not employed when less
invasive techniques are available or have not yet been exhausted.
84. States should criminalize illegal surveillance by public or private actors. Such
laws must not be used to target whistleblowers or other individuals seeking to expose
human rights violations, nor should they hamper the legitimate oversight of
government action by citizens.
85. The provision of communications data by the private sector to States should be
sufficiently regulated to ensure that individuals’ human rights are prioritized at all
times. Access to communications data held by domestic corporate actors should only